#### Rafferty *versus*Haldron *et al.*

1. Where replevin is brought to establish the right of property which has been fraudulently or wrongfully obtained, it serves also the purpose of an action of trespass, in which the jury may find the value of the thing, and also vindicatory damages. *Per*Thayer, J., approved by Supreme Court.

2. It is the business of a purchaser dealing with an agent to ascertain the extent of his authority; if he deals with him on terms beyond his authority the principal is not bound. *Id.*

3. Where one deals with an agent supposing him to have full authority, although restricted, and the principal should remain silent after knowing a bargain had been made, and suffer the man to go on as if all were right, he would be protected against any subsequent claim by the principal. *Id.*

4. When one gives a limited authority to an agent and he transgresses it, and the principal immediately repudiates it, he is not bound. *Id.*

5. In an action of replevin for a chattel sold by an agent in excess of his authority, if the purchaser bought in good faith, believing the agent had authority, and the principal promptly repudiated the sale, the property would be unchanged, but the damages to be recovered would be the value of the article and interest. *Id.*

January 12th, 1875.

Before Agnew, C.J., Sharswood, Williams, Merour, Gordon, Paxson, and Woodward, JJ.

Error to District Coui't of Philadelphia, to January Term, 1873, No. 190.

This was an action of replevin for a mare, valued in the writ at $300, brought December 5th, 1871, by Thomas Ilaldron and George A. Haldron, against George Rafferty.

The defendant gave a claim-property bond and retained the mare. He pleaded *non cepit*and property.

The case was tried November 11th, 1872, before Thayer, J.

The plaintiff's gave evidence that they owned the mare in November, 1871, and that she had been sent about that time to William Herbert, at the Blue Bell Tavern, in the vicinity of Philadelphia, to have her kept and trained. They authorized him to sell her at not less than $100 or $125.

*439
      *T. Haldron*testified: That on a Friday in the latter part of November, 1871, the defendant came to his house and wantod to see the owner of the mare and asked about her; he said he was going to the.Blue Bell; witness asked him to take him with him; defendant said he could not, as he had to bring another man back; witness told him to tell Herbert that he did not wish him to sell the mare; defendant said he would deliver the message to Herbert; defendant asked witness the price of the mare, and was informed that nothing less than $150 would buy her; defendant then said he would have nothing to do with her.

*W. Herbert*testified: That wdien the mare was left with him he was told to sell her at not less than $125 ; the defendant came on a Friday to Herbert’s, and offered $90 for the mare. Witness said he could not take it without seeing Mr'. Haldron; defendant left $30 to be returned to him if Haldron did not take the offer. On Saturday following defendant said he had sent' for the mare, to which Herbert replied, “You can’t get her;” defendant said he had sent an order’ down; witness told him Haldron had said he would not sell the mare, and offered him the $30, but he would not take it. Witness was to give the $30 to Haldron, and see if he wmuld take $90 for her; if he would defendant was to come on Sunday and take her. Witness saw the defendant shortly after he got the mare, and said to him he might as well give up the mare and take the money.

*W. W.*Herbert, son of Herbert the former witness, testified : Two men, who had been there previously with defendant, came after the mare; defendant was not with them; they had an order, as follows:

“Mr. W. Herbert: Sir, — You will please give the dun mare to bearer, and oblige yours, etc., George Bafferty.”

Witness asked them if it was all right; they said it was ; they handed witness $00, wrote and read a receipt, which witness signed, and they took the mare away.

*A. J. Russell*testified he was present at the time of the talk about the mare between Herbert and defendant; he paid Herbert $30 as part payment for the mare; Herbert was to see the owners next day ; if they should be willing to take $90, he was to let defendant know; he was to refund the $30 if they declined the offer. There was evidence that defendant gave the order to the man who. got the mare. The plaintiff gave further evidence in corroboration, and also evidence of the value of the mare.

The defendant gave evidence that Herbert agreed with him to sell the mare for $90; that Herbert said if he could *440not get $100 lie was to do the best he could, and other evidence in answer to plaintiffs’ case.

The defendant’s points were the following; they were refused by the Court.

1. If the jury find from the evidence that the plaintiffs had authorized' William Herbert to sell the mare, they are bound by his acts; and if the defendant purchased her, the plaintiffs cannot recover.

2. The plaintiffs are entitled to recover only the value of the animal as they find it from the evidence.

3. If the plaintiffs received the money after they were notified or knew of the sale, they ratified and confirmed it.

The Court charged:

“ Ordinarily, an action of replevin is brought to determine a disputed question of ownership, and the principal question to be determined in this case is Avhether the plaintiffs Avere the OAvners of this mare after the transaction of the defendant with William Herbert ceased, or Avhether that transaction, resulted in a right of property acquired by the defendant. The action of replevin under some circumstances is not unlike an action of trespass. Where the replevin is brought to establish the right of property, which has been fraudulently or wrongfully obtained by the defendant, the action serves the purpose not only of an action of replevin, but also of an action of trespass in which the plaiutiff may, if the fraud or Avrong be found by the jury, recover vindicatory damages as well as the value of the thing which has been fraudulently or wrongfully taken; that is, damages founded upon the idea of vindicating the law, and of vindicating the rights Avhich have been improperly or wrongfully invaded by the defendant. These two points, therefore, are the chief questions into which you are to inquire. -First, the right of ownership in the mare. Secondly, whether the defendant obtained possession of the mare by fraud or by a wrongful act. . .

The Court then recapitulated the evidence, and proceeded:

“ In' regard to the right of property, I may say this: That if Herbert had an authority to sell the horse for $12-5, and his authority was limited to a sale for $125, he could not sell for less, and if he sold the animal for less, no right of property has passed to the purchaser, it being the business of the purchaser, dealing with an agent, to ascertain the extent of his authority. A man is not bound if an agent breaks the confidence which is reposed in him. . . . Wherefore, the law is that under such circumstances a man dealing Avith an agent must ascertain the extent of the authority which has been reposed in him, and if he deals with an agent *441upon terms which are beyond the authority which has beenreposed in him, the principal is not bound. Of course there are exceptions under such a general rule ás that. There are cases in which the public or third persons dealing with an agent will be protected against any injury which they may receive from the wrongful act of the agent. As for example, if a man should deal with an agent, supposing him to have a plenary authority, when in point of fact he had only a very restricted authority, and if he should make a bargain with him, and the owners should remain silent after ascertaining that such a bargaiu had been made, and were to suffer the man who. had dealt with.the agent to go on in his affairs as if everything was right, and by their inaction acquiesce in what had been done, such a man would be protected against any subsequent or stale claim on the part of the principal, arising out of the terms made with the agent, who had exceeded his authority. But when a man gives a limited authority to an agent to sell or do anything else, and he transgresses it, and the principal immediately repudiates his act, he is not bound by it. Therefore, if the allegation of the defendant is true, that Herbert having only an authority to sell for $125, agreed to sell the animal for $ LOO or for $90, the Haldrons would not be hound by that bargain, if the defendant was immediately acquainted with their dissent from it. If they had-allowed him, notwithstanding the violation of the authority which had been given, to accept the animal and to keep it and treat it as his own, and at some subsequent period had disclaimed the act of the agent, then they could not be bound. But if the defendant knew that the plaintiffs did not acquiesce in that sale, and that Herbert l}ad no authority to sell for less than $125, then the plaintiff's would not be bound by the transaction, and the right of property to the mare would remain in the plaintiff's, even if you should find that he agreed with Herbert to pay him $90 or $100 for the horse.” . . .

The Court then referred to the defendant’s evidence, and further charged:

“ Now this is immediately bearing upon the case in view of the damages which are to be assessed, if you should, find a verdict for the plaintiff; because if you should believe Bafferty and not the plaintiffs’ witnesses, then it would appear .that he might have acted in good faith, so-far as he was concerned, in taking the mare. If Herbert, told him that he had authority to fio the best he could, why,, then, he had a right to infer from this statement that he had authority to sell for any price he chose; that it was left tO' his discretion. If he believed that, or had reason to believe’, it, then it would be entirely consistent with good faith om *442his part in the proceedings which he adopted.,. . . Now to sum up the whole matter, if William Herbert, having a special authority to sell for a particular, and he undertook to sell for a different and less price, no right of property passed to the defendant by that sale, if the plaintiffs immediately upon ascertaining it repudiated it, and refused to confirm it. The right of property under such circumstances would remain in the plaintiffs, and they would, if you should find that, therefore succeed in obtaining a verdict in this case. If you should find that the plaintiffs have never lost their right of property, that the mare was never parted with by them, or under any authority given by them to the defendant, then ordinarily the measure of damages in such a ease as this would be the value of the animal, with interest from the day on which it was taken by the defendant. ... If the defendant acted in.good faith in the matter, that would be the limit of any damages which are to be found by you, — the value of the animal, with interest from the day of its taking by the defendant, allowing to the defendant the $90 which was paid by him in cash to Herbert. If you find that the defendant obtained possession of the animal without any fraudulent intent, and. therefore, with the right of property remaining in the plaintiffs, your verdict should be for the value of the animal, with interest from the day of the taking, allowing for the sum which had been paid on account. If, on the contrary, you should find that the defendant obtained possession of the mare by a fraud and wrong, that he sent for the mare purposely during the absence of Herbert, and obtained possession of her in a deceitful manner, you have a right, if you see proper so to do, to find not only the .value of the animal, with interest,'but such an additional sum as will vindicate the law against such abuses and protect the public against such frauds and misconduct.” . . .

The verdict was for the plaintiffs for $258.75.

The defendant took a writ of error, and assigned for error the refusal of the Court to charge in accordance with his points.

*T. J.*Diehl, for plaintiffs in error,

cited Wright *v.*Burbank, 14 P. F. Smith, 247; Mundorff *v.*Wickersham, 18 Id., 87.

*B. H.*McGrath, for defendants in error. '

Judgment was entered in the Supreme Court, January, 1875.

Per Curiam:

This is a plain case. There was no complete sale, and the possession of the mare was obtained by *443deceit. Rafferty had notice in the very transaction itself of the want of the agent’s authority. In the whole transaction he acted by indirection, and properly was defeated in his attempt to foist a sale upon a, party who had not made one.

We discover no error in the charge and answers.

Judgment affirmed.